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holding that parent waived complaint about service when "attorney ad litem attended the termination hearing, announced not ready, but sought the trial court's consideration of not only the child's best interest, but also the alleged grounds for termination"
Summary of this case from In re Interest of H.J.Y.S.Opinion
No. 04-17-00445-CV
10-25-2017
IN THE INTEREST OF Y.W., a Child
MEMORANDUM OPINION
From the 37th Judicial District Court, Bexar County, Texas
Trial Court No. 2016-PA-01399
Honorable Richard Garcia, Associate Judge Presiding Opinion by: Luz Elena D. Chapa, Justice Sitting: Sandee Bryan Marion, Chief Justice Luz Elena D. Chapa, Justice Irene Rios, Justice AFFIRMED
Victoria appeals the trial court's termination of her parental rights to her daughter, Y.W., who was born in 2005. Victoria argues the trial court erred by rendering a judgment without a return of service having been filed and that legally and factually insufficient evidence supports the trial court's findings. We affirm the trial court's judgment.
To protect the identity of minor children in appeals from termination of parental rights, we refer to parents by their first names and to children by their initials. See TEX. FAM. CODE ANN. § 109.002(d) (West 2014); TEX. R. APP. P. 9.8(b)(2).
BACKGROUND
The Texas Department of Family and Protective Services removed Y.W. from her father's care after receiving a referral alleging sexual abuse by her father, Jeremy. The affidavit in support of removal averred Victoria had no contact with Y.W. "for several years," and that Victoria "reported a history with Child Protective Services in Louisiana." The Department filed a petition for conservatorship and to terminate Jeremy's and Victoria's parental rights.
The case proceeded to a bench trial, at which Department caseworker Sheronda Davis testified. Victoria's attorney ad litem announced "not ready" because Victoria did not appear in person or telephonically. Davis testified Y.W. is twelve years old and has been placed with her paternal aunt. She stated Y.W. is doing well academically, socially involved in school, and taking medication for depression.
Davis testified she discussed a family service plan with Victoria, and Victoria understood the plan and that a failure to comply with its terms could result in the termination of her parental rights. Davis further testified Victoria said Jeremy had not let her see Y.W. and that she was unsuccessful in attempting to retrieve Y.W. from Jeremy. Victoria told Davis near the beginning of the case that "she was interested in parenting and getting to work the family plan." According to Davis, Victoria provided no proof she completed any of the services on her plan or that Victoria was able to care for Y.W. Davis stated Victoria lives in Louisiana and had not seen or provided any support to Y.W. for the past ten years. Davis also stated that after talking with Y.W., she believed Y.W. did not want to live with Victoria.
Davis testified Y.W. and her aunt recently moved to Kentucky, and Y.W. had not yet restarted therapy. Davis stated Y.W.'s aunt asked for Y.W. to be placed elsewhere because the aunt was going through a divorce and her mother "recently passed." At the time of trial, the Department was still seeking relatives with whom to place Y.W. However, Davis testified Y.W.'s great aunt had "found out" about the case, made contact with Davis, and "is interested in placement."
The trial court signed a final order terminating Victoria's parental rights. The trial court found Victoria constructively abandoned Y.W. and failed to comply with her family service plan requirements. The trial court also found termination of Victoria's parental rights is in Y.W.'s best interest. Victoria timely filed a notice of appeal.
The trial court also terminated Jeremy's parental rights, but he did not file a notice of appeal.
RETURN OF SERVICE
Victoria contends the trial court erred by rendering a judgment terminating her parental rights "without the Return of Service . . . having been filed with the court." Texas Rule of Civil Procedure 107 provides a trial court may not grant a default judgment until proof of service, such as a return of service, has been on file with the trial court clerk for ten days. TEX. R. CIV. P. 107(g), (h). This court has held that, in a proceeding to terminate parental rights, an appellant waives any complaint about service if her attorney ad litem "attend[s] the termination hearing, announce[s] not ready, but [seeks] the court's consideration of the child's best interest." In re D.M.B., 467 S.W.3d 100, 103 (Tex. App.—San Antonio 2015, pet. denied). The record in this case shows Victoria's attorney ad litem attended the termination hearing, announced not ready, but sought the trial court's consideration of not only the child's best interest, but also the alleged grounds for termination. Victoria has therefore waived any complaint about service. See id.
We also note Victoria's ad litem attorney represented to the trial court that Victoria had been served.
THE TRIAL COURT'S FINDINGS
Victoria challenges the trial court's findings of grounds for termination and its finding that termination of her parental rights is in Y.W.'s best interest. She argues legally and factually insufficient evidence supports the findings.
A. Standard of Review
A judgment terminating parental rights must be supported by clear and convincing evidence. TEX. FAM. CODE ANN. § 161.001(b) (West Supp. 2016). To determine whether this heightened burden of proof was met, we employ a heightened standard of review to determine whether a "factfinder could reasonably form a firm belief or conviction about the truth of the State's allegations." In re C.H., 89 S.W.3d 17, 25 (Tex. 2002). "This standard guards the constitutional interests implicated by termination, while retaining the deference an appellate court must have for the factfinder's role." In re O.N.H., 401 S.W.3d 681, 683 (Tex. App.—San Antonio 2013, no pet.). We do not reweigh issues of witness credibility but defer to the factfinder's reasonable determinations of credibility. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005).
A legal sufficiency review requires us to examine the evidence "in the light most favorable to the finding to determine whether a reasonable trier of fact could have formed a firm belief or conviction that its finding was true." In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). We assume the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could have done so, and we disregard all evidence that a reasonable factfinder could have disbelieved or found incredible. Id. But we may not simply disregard undisputed facts that do not support the finding; to do so would not comport with the heightened burden of proof by clear and convincing evidence. Id. When conducting a factual sufficiency review, we evaluate "whether disputed evidence is such that a reasonable factfinder could not have resolved that disputed evidence in favor of its finding." Id. The evidence is factually insufficient "[i]f, in light of the entire record, the disputed evidence that a reasonable factfinder could not have credited in favor of the finding is so significant that a factfinder could not reasonably have formed a firm belief or conviction." Id.
B. Findings of Grounds for Termination
The trial court found two grounds for terminating Victoria's parental rights: constructive abandonment and failure to comply with her family service plan requirements. A finding of only one ground for termination is necessary to support a judgment of termination. See In re A.V., 113 S.W.3d 355, 362 (Tex. 2003). Section 161.001(b)(1)(N) provides a ground for termination when a parent:
constructively abandoned the child who has been in the permanent or temporary managing conservatorship of the Department of Family and Protective Services for not less than six months, and:TEX. FAM. CODE ANN. § 161.001(b)(1)(N); In re K.M.B., 91 S.W.3d 18, 25 (Tex. App.—Fort Worth 2002, no pet.). Regarding this finding, Victoria challenges the sufficiency of the evidence solely in regard to the requirement that "the department [make] reasonable efforts to return the child to the parent." See id. § 161.001(b)(1)(N)(i). Our review of this issue is therefore limited to whether there is legally and factually insufficient evidence to support this element. See UMLIC VP LLC v. T & M Sales & Envt'l Sys., Inc., 176 S.W.3d 595, 615 (Tex. App.—Corpus Christi 2005, pet. denied) (limiting review of sufficiency of the evidence to one element of the ground for relief that factfinder found because it was the only element challenged on appeal).
(i) the department has made reasonable efforts to return the child to the parent;
(ii) the parent has not regularly visited or maintained significant contact with the child; and
(iii) the parent has demonstrated an inability to provide the child with a safe environment.
The Department's preparation and administration of a family service plan generally constitutes evidence of reasonable efforts to return the child to the parent, as required for a constructive abandonment finding. In re M.R.J.M., 280 S.W.3d 494, 505 (Tex. App.—Fort Worth 2009, no pet.). The record in this case shows caseworker Davis testified she discussed a family service plan with Victoria, and the family service plan addressed the reasons why Y.W. was brought into the Department's care. Without citing any authority, Victoria argues the evidence is insufficient because Davis also testified that Victoria did not sign the family service plan, Victoria expressed an interest in parenting and working on the family service plan, the Department did not serve Victoria until eight months after Davis contacted Victoria, and the Department did not contact Victoria after the 60-day hearing.
However, Davis also testified she sent the family service plan to Victoria at the address Victoria gave; Victoria understood the family service plan; and she explained to Victoria that a failure to comply with its terms could result in the termination of her parental rights. Although Davis testified "I haven't had contact with [Victoria]" since "the 60-day," we must view the evidence in a light most favorable to the finding. See In re J.F.C., 96 S.W.3d at 266. Considering Davis's testimony in context, a reasonable factfinder could infer that despite stating she wanted to parent Y.W. at the beginning of the case, Victoria failed to contact the Department after Davis's initial contact and demonstrated she was not actually interested in parenting Y.W.
We hold a reasonable factfinder could have formed a firm belief or conviction that the Department made reasonable efforts to return Y.W. to Victoria. See id. Because legally and factually sufficient evidence supports the trial court's constructive abandonment finding, and a finding of only one ground for termination is necessary to support a judgment of termination, we need not address Victoria's challenges to the trial court's finding that she failed to comply with her family service plan. See In re A.V., 113 S.W.3d at 362; see also TEX. R. APP. P. 47.1. We therefore consider Victoria's remaining issue challenging the trial court's best-interest finding.
C. Best-Interest Finding
Victoria also challenges the trial court's finding that termination of her parental rights is in Y.W.'s best interest. The best-interest determination is a wide-ranging inquiry, and the Texas Supreme Court has set out some factors relevant to the determination:
• the desires of the child;Holley v. Adams, 544 S.W.2d 367, 372 (Tex. 1976). The list is not exhaustive, and not every factor must be proved to find that termination is in the child's best interest. In re C.H., 89 S.W.3d at 27. "Evidence that the parent has committed the acts or omissions prescribed by section 161.001 may also be probative in determining the child's best interest; but the mere fact that an act or omission occurred in the past does not ipso facto prove that termination is currently in the child's best interest." In re O.N.H., 401 S.W.3d at 684 (internal citation omitted). A factfinder may infer that a parent's past conduct may recur in the future if the child is returned to the parent. See In re D.M., 452 S.W.3d 462, 471 (Tex. App.—San Antonio 2014, no pet.).
• the emotional and physical needs of the child now and in the future;
• the emotional and physical danger to the child now and in the future;
• the parental abilities of the individuals seeking custody;
• the programs available to assist these individuals to promote the best interest of the child;
• the plans for the child by these individuals or by the agency seeking custody;
• the stability of the home or proposed placement;
• the acts or omissions of the parent which may indicate that the existing parent-child relationship is not a proper one; and
• any excuse for the acts or omissions of the parent.
There is evidence that Y.W. desired not to live with Victoria and that many of Y.W.'s needs are currently being met. Although Y.W.'s aunt has asked for Y.W. to be removed, there is evidence showing the Department plans to continue to keep Y.W. with her relatives, particularly Y.W.'s great aunt who initiated contact with the Department and expressed interest in placement. It is undisputed Victoria did not see, visit, or support Y.W. for approximately ten years. It is also undisputed that after being made aware of the trial court proceedings, Victoria showed minimal interest in being in Y.W.'s life and Victoria did not appear in person or telephonically for trial. The trial court was entitled to infer Victoria's past conduct of abandoning Y.W. and showing disinterest would recur in the future if Y.W. were returned to her. See id. Having considered all of the evidence, we hold a reasonable factfinder could form a firm belief or conviction that termination of Victoria's parental rights is in Y.W.'s best interest. See H.N. v. Dep't of Family & Protective Servs., 397 S.W.3d 802, 813-15 (Tex. App.—El Paso 2013, no pet.) (considering parent's failure to make contact or visit with child as evidence supporting a best-interest finding).
CONCLUSION
Because the trial court made the necessary findings to support termination of Victoria's parental rights to Y.W., and those finding are supported by legally and factually sufficient evidence, we affirm the trial court's judgment.
Luz Elena D. Chapa, Justice